Education:: Safety First: The EU would not stop the UK making seat belts in school buses compulsory, says Jo Goldby

Recent reports of horrific accidents have increased calls for seat belts to be installed in all coaches and minibuses in the UK. As public support for compulsory seat belts grows, so does the number of arguments against making seat belts for every seat compulsory, or for not installing them voluntarily.

The London office of the solicitors Baker & McKenzie has examined the issues and considers the arguments against compulsory or voluntary installation of seat belts in coaches and minibuses to be either invalid, or unreasonably exaggerated.

The Government has claimed that it cannot legislate to make seat belts compulsory in coaches and minibuses unless they are simultaneously made compulsory throughout the EU. The European Parliament called recently on the European Commission and member states to legislate as a matter of urgency, but it could take years before any EU legislation is in force in the UK. However, according to Baker & McKenzie, the UK government should legislate without waiting for the rest of Europe.

The Government's reluctance to legislate appears to be based on the fact that Article 30 of the Treaty of Rome prevents member states from taking measures that restrict the free movement of goods between states. The argument is that if seat belts are compulsory for all seats in all vehicles used in the UK, this will discourage sales of coaches and minibuses imported into the UK from other member states.

However, the treaty contains exceptions from the Article 30 prohibition. A member state may enact legislation which affects imports where the legislation is justified on grounds of public morality, public security, public policy, the protection of national treasures or the protection of health and life of humans, animals or plants (Article 36 of the Treaty of Rome).

So, for example, it is possible for member states to prohibit certain additives in foodstuffs or to regulate sales of medical products, without reference to the rest of the EU. In a recent case, the European Court of Justice confirmed that in the absence of EU regulation, each state can decide what level of protection is appropriate to safeguard the health and life of humans. There are, however, limits to this principle: the legislation must not hinder inter-state trade any more than is necessary to attain its objective.

But only last week the Advocate-General in the European Court of Justice threw out a case involving a Dutch motorist who questioned the validity of vehicle testing, saying: 'In my view the restrictions in question can be justified as a measure taken for the protection of public health which must obviously be taken to include the prevention of road accidents.'

If the Netherlands can protect the health and life of humans by vehicle testing laws not in place in other European countries, the UK government can legislate to make seat belts compulsory to protect British people.

Even if the Government fails to legislate, seat belts can be added voluntarily. The Department of Transport's public enquiry unit confirms that any vehicle owner is at liberty to add additional safety equipment to that required by law. Owners of coaches and minibuses may install extra seat belts, provided they comply with EU specifications.

Claims have been made that adding seat belts without a legal obligation to do so could result in civil liability claims against the installer. But there are no reported cases in this country of coach or minibus owners being sued for having installed seat belts voluntarily. According to Baker & McKenzie, the situation is analogous to the position of a voluntary rescuer: where a person voluntarily rescues someone without a duty to do so, case law has established that, provided the voluntary action does not add to the damage suffered by the victim, there will be no liability for negligence.

So by analogy, a vehicle owner will not have any additional liability for voluntarily installing seat belts unless the injuries suffered by passengers in an accident are worse than if there had been no seat belts at all.

Provided, therefore, that the seat belts are installed correctly, and are not defective, the vehicle owner's liability will be restricted to any liability for having caused the accident in the first place. In fact, there are also legal arguments for considering that failing to install seat belts voluntarily could be a breach of the owner's common law duty to ensure the safety of the vehicle.

While the European Commission discusses the issue, the UK government should act to protect British nationals by researching the options and enacting new laws. And coach and minibus operators should seriously consider installing seat belts voluntarily.